We were invited, as independent experts, to join the Advisory Council to Google on the Right to be Forgotten following the Court of Justice of the European Union’s ruling in Google Spain and Inc. vs. Agencia Española de Protección de Datos (AEPD) and Mario Costeja Gonzalez C131/12 (“the Ruling”) in May 2014. Google asked us to advise it on performing the balancing act between an individual’s right to privacy and the public’s interest in access to information.
This report summarizes our advice to the company, which is based on several inputs:
- our expertise;
- our own independent views and assessments;
- evidence we heard from experts around Europe during our seven-city tour, some of whom were critical of the Ruling and others of whom argued that the Ruling came to good conclusions;
- input provided by Internet users and subject matter experts via the website www.google.com/advisorycouncil/;
- other materials we have reviewed, including European Court of Human Rights case law, policy guidelines of news organizations, and the Article 29 Working Party’s Guidelines on the Implementation of the Ruling adopted on 26 November 2014. ...
We were convened to advise on criteria that Google should use in striking a balance, such as what role the data subject plays in public life, or whether the information is outdated or no longer relevant. We also considered the best process and inputs to Google’s decision making, including input from the original publishers of information at issue, as potentially important aspects of the balancing exercise.
We have found the public discussion around the Ruling to be a valuable contribution to an ongoing general debate about the role of citizen rights in the Internet. If nothing else, this Ruling and the discussion around it have raised awareness of how to protect these rights in a digital era. We hope the recommendations that follow continue to raise that awareness.
2. Overview of the Ruling
The Ruling has been widely referred to as creating a “Right to be Forgotten.” This reference is so generally understood that this Advisory Council was convened to advise on the implementation of this right. In fact, the Ruling does not establish a general Right to be Forgotten.
Implementation of the Ruling does not have the effect of “forgetting” information about a data subject. Instead, it requires Google to remove links returned in search results based on an individual’s name when those results are “inadequate, irrelevant or no longer relevant, or excessive.” Google is not required to remove those results if there is an overriding public interest in them “for particular reasons, such as the role played by the data subject in public life.”
Throughout this report, we shall refer to the process of removing links in search results based on queries for an individual’s name as “delisting”. Once delisted, the information is still available at the source site, but its accessibility to the general public is reduced because search queries against the data subject’s name will not return a link to the source publication. Those with the resources to do more extensive searches or research will still be able to find the information, since only the link to the information has been removed, not the information itself.
The legal criteria for removing content altogether from the underlying source may be different from those applied to delisting, given the publisher’s rights to free expression. If Google decides not to delist a link, the data subject can challenge this decision before the competent Data Protection Authority or Court.
3. Nature of the Rights at Issue in the Ruling
The Ruling should be interpreted in light of the rights to privacy and data protection, as well as rights to freedom of expression and access to information. By referring to these rights, we invoke the conceptual frameworks established in various instruments that outline and enshrine fundamental freedoms and rights in Europe.
The right to privacy is enshrined in Article 7 of the Charter of Fundamental Rights of the European Union (henceforth the Charter) and in Article 8 of the European Convention on Human Rights (henceforth the Convention). It affirms respect for private life and freedom from interference by the public authorities except in accordance with the law.
The right to data protection is granted by Article 8 of the Charter. It ensures that data are processed fairly, for specified purposes, and on the basis of consent or some other legitimate basis laid down by law. It also ensures that data which have been collected can be accessed and rectified. Privacy and data protection are fundamental rights.
Freedom of expression and information are enshrined in Article 10 of the Convention and Article 11 of the Charter. These rights establish that expressing ideas and holding opinions as well as receiving and imparting information and ideas, regardless of frontiers, are fundamental rights.
The Ruling invokes a data subject’s right to object to, and require cessation of, the processing of data about himself or herself. This right exists regardless of whether the processing at issue causes harm or is prejudicial in some way to the data subject.
The Court of Justice of the European Union (CJEU) noted in the Ruling that the data subject’s fundamental rights “override, as a rule, not only the economic interest of the operator of the search engine but also the interest of the general public in finding that information upon a search relating to the data subject’s name.” However, the Court acknowledged that, for particular reasons, the public will have an interest in continued ability to find the link by searching on the data subject’s name. Therefore, the operator of the search engine is directed to engage in a balancing test to determine whether the data protection rights of the data subject are outweighed by “the preponderant interest of the general public in having, on account of inclusion in the list of results, access to the information in question.” The question of whether the data subject experiences harm from such accessibility to the information is in our view relevant to this balancing test.
Assessing harm to the data subject must be done on an ethical, legal, and practical basis, which can be understood based both on CJEU case law interpreting the Charter and on European Court of Human Rights (ECHR) case law interpreting the Convention. The scope of rights and harms outlined in Article 8 of the Convention have been well analyzed and developed in case law outside the data protection context, particularly law concerning defamation and privacy claims. The animating values in those cases often concern personal honor, dignity, and reputation as well as the protection of sensitive or intimate personal information. Similar values animate the case law that bounds the scope of data protection rights under Article 8 of the Charter. As a result, the Ruling should be read in light of this ongoing dialog between the CJEU and the ECHR, and, where relevant, case law of national higher courts, delineating the scope of, and relationship between, privacy and expression rights. The ruling, while reinforcing European citizens’ data protection rights, should not be interpreted as a legitimation for practices of censorship of past information and limiting the right to access information.
4. Criteria for Assessing Delisting Requests
We identified four primary criteria on which we advise Google to evaluate delisting requests from individual data subjects. None of these four criteria is determinative on its own, and there is no strict hierarchy among them. Furthermore, social or technical changes may cause these criteria to evolve over time.
4.1. Data Subject’s Role in Public Life
As explicitly noted in the Ruling, the role an individual plays in public life will weigh on the balancing act Google must perform between the data subject’s data protection rights and the public’s interest in access to information via a name-based search. The first step in evaluating a delisting request should be to determine the individual’s role in public life. These categorizations are not in themselves determinative, and some evaluation along the other criteria laid out below is always necessary. However, the relative weight applied to the other criteria will be influenced by the role the individual plays in public life.
In general, individuals will fall into one of the following three categories:
- Individuals with clear roles in public life (for example, politicians, CEOs, celebrities, religious leaders, sports stars, performing artists): delisting requests from such individuals are less likely to justify delisting, since the public will generally have an overriding interest in finding information about them via a name-based search.
- Individuals with no discernable role in public life: delisting requests for such individuals are more likely to justify delisting.
- Individuals with a limited or context-specific role in public life (for example, school directors, some kinds of public employees, persons thrust into the public eye because of events beyond their control, or individuals who may play a public role within a specific community because of their profession): delisting requests from such individuals are neither less nor more likely to justify delisting, as the specific content of the information being listed is probably going to weigh more heavily on the delisting decision.
Data subjects related to individuals playing a role in public life present some interesting edge cases, as they may themselves play a role in public life which can be significant. However, in similar cases, special attention should be paid to the content of the delisting request, as the data subject’s public role may be circumscribed. For example, there may be a strong public interest in information about nepotism in family hiring.
4.2. Nature of the Information
4.2.1. Types of information that bias toward an individual’s strong privacy interest
1. Information related to an individual’s intimate or sex life.
In general, this information will hold increased weight of privacy rights in the balancing test against public interest. The exceptions will generally be for individuals who play a role in public life, where there is a public interest in accessing this information about the individual.
2. Personal financial information.
Specific details such as bank account information are likely to be private and warrant delisting in most cases. More general information about wealth and income may be in the public interest. For example, in some countries, the salaries and properties of public employees are treated as public information; stock holdings in public companies may be of public interest; or there may be valid journalistic concerns in wealth and income information, including investigations of corruption.
3. Private contact or identification information.
Information such as private phone numbers, addresses or similar contact information,11 government ID numbers, PINs, passwords, or credit card numbers will hold increased weight of privacy rights in the balancing test against public interest.
4. Information deemed sensitive under EU Data Protection law.
Information revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, health, or sex life may all have specific privacy protections in Europe. However, when such data relates to the role the data subject plays in public life, there can be a strong public interest in accessing links to this information via a name-based search.
5. Private information about minors.
There is a special privacy consideration for children and adolescents according to the United Nations Convention on the Rights of the Child.
6. Information that is false, makes an inaccurate association or puts the data subject at risk of harm.
False information or information that puts the data subject at risk of harm, such as identify theft or stalking, weighs strongly in favor of delisting.
7. Information that may heighten the data subject’s privacy interests because it appears in image or video form.
4.2.2. Types of information that bias toward a public interest
1. Information relevant to political discourse, citizen engagement, or governance.
Political discourse is strongly in the public interest, including opinions and discussions of other people’s political beliefs, and should rarely be delisted.
2. Information relevant to religious or philosophical discourse.
Religious and philosophical discourse is strongly in the public interest, including opinions and discussions of other people’s religious and philosophical beliefs, and should rarely be delisted.
3. Information that relates to public health and consumer protection.
Information related to public health or consumer protection issues weighs strongly against removal. For example, reviews of professional services offered to the public at large may impact consumer safety; this value is widely recognized in the context of journalistic exceptions. Today, sources such as individual users on social media sites often provide this type of information, more so than traditional journalistic sources.
4. Information related to criminal activity.
Data relating to offences or criminal convictions warrants special treatment under EU Data Protection Law. Where specific laws relating to the processing of such data provide clear guidance, these should prevail. Where none applies, the outcome will differ depending on context. The separate considerations of severity of the crime, the role played by the requestor in the criminal activity, the recency and the source of the information (both discussed below), as well as the degree of public interest in the information at issue will be particularly relevant in assessing these cases. The evaluation of the public interest in the delistings requested may differ depending on whether they concern a criminal offender or victim of a criminal offense. Information regarding human rights violations and crimes against humanity should weigh against delisting.
5. Information that contributes to a debate on a matter of general interest. T
he public will have an interest in accessing individual opinions and discussion of information that contributes to a public debate on a matter of general interest (for example, industrial disputes or fraudulent practice). The determination of a contribution to public debate may be informed by the source criterion, discussed below, but once information about a particular subject or event is deemed to contribute to a public debate there will be a bias against delisting any information about that subject, regardless of source.
6. Information that is factual and true.
Factual and truthful information that puts no one at risk of harm will weigh against delisting.
7. Information integral to the historical record.
Where content relates to a historical figure or historical events, the public has a particularly strong interest in accessing it online easily via a namebased search, and it will weigh against delisting. The strongest instances include links to information regarding crimes against humanity.
8. Information integral to scientific inquiry or artistic expression.
In some cases, removing links from name-based search results will distort scientific inquiry; in those cases the information may carry public interest valence. The artistic significance of content constitutes public interest and will weigh against delisting. For example, if a data subject is portrayed in an artistic parody, it will weigh in favor of a public interest in the information.
In assessing whether the public has a legitimate interest in links to information via a name-based search, it is relevant to consider the source of that information and the motivation for publishing it. For example, if the source is a journalistic entity operating under journalistic norms and best practices there will be a greater public interest in accessing the information published by that source via name-based searches. Government publications weigh in favor of a public interest in accessing the information via a name-based search.
Information published by recognized bloggers or individual authors of good reputation with substantial credibility and/or readership will weigh in favor of public interest. Information that is published by or with the consent of the data subject himself or herself will weigh against delisting. This is especially true in cases where the data subject can remove the information with relative ease directly from the original source webpage, for example by deleting his or her own post on a social network.
The ruling refers to the notion that information may at one point be relevant but, as circumstances change, the relevance of that information may fade.
This criterion carries heavier weight if the data subject’s role in public life is limited or has changed, but time may be a relevant criterion even when a data subject’s role in public life has not changed. There are types of information for which the time criterion may not be relevant to a delisting decision—for example information relating to issues of profound public importance, such as crimes against humanity. This criterion will be particularly relevant for criminal issues. The severity of a crime and the time passed may together favor delisting, such as in the case of a minor crime committed many years in the past. It could also suggest an ongoing public interest in the information—for example if a data subject has committed fraud and may potentially be in new positions of trust, or if a data subject has committed a crime of sexual violence and could possibly seek a job as a teacher or a profession of public trust that involves entering private homes.
Time may also weigh on determining the data subject’s role in public life. For example, a politician may leave public office and seek out a private life, or a CEO may step down from his or her role, but information about his or her time in that role may remain in the public interest as time goes on. This criterion may also weigh toward approving delisting requests for information about the data subject’s childhood.